Another View -- Calvin Massey: How the U.S. Constitution keeps up with the times

Editor's note: The commentary below is one in a series on the topic, "How Does the Constitution Keep Up with the Times?" The essay was written by Calvin R. Massey, the Daniel Webster Distinguished Professor at UNH School of Law, for the Constitutionally Speaking civic engagement initiative. The yearlong pilot project is a collaboration of the New Hampshire Supreme Court Society, the New Hampshire Humanities Council, and UNH School of Law.

How does the 225-year-old Constitution keep up with changing times? There is no universal answer; indeed, answers to this question tend to be controversial.

Perhaps the simplest answer is the Constitution can be amended. That is no easy task. More than 10,000 amendments have been proposed, but only 27 have successfully been adopted. Some of them have been constitutional earthquakes: the Reconstruction amendments, the 16th Amendment (permitting the income tax), the 17th Amendment (direct election of senators), and the 19th (women's vote). Others have been mere tremors, such as the 20th Amendment, which moved Inauguration Day to Jan. 20.

The more common method has been judicial interpretation. Much of the Constitution is couched in open-ended phrases - cruel and unusual punishment, due process of law, equal protection of the laws, unreasonable search or seizure - the meaning of which is not self-evident. Enter the courts.

"It is emphatically the province and duty of the (courts) to say what the law is," declared Chief Justice John Marshall, still the greatest chief justice of our history. But how are judges to decide the meaning of these sonorous phrases?

Federal judges are appointed for life and have no political accountability, unlike our elected representatives. If the content that judges pour into these constitutional phrases is only their personal views, the legitimacy of this brand of constitutional "interpretation" is highly suspect. If the content of these phrases is fixed for all time in 1787, or 1869, or whenever new terms are added to the Constitution, the Constitution risks becoming a rigid and unresponsive document, divorced from our contemporary problems. So how do we choose between the two methods of judicial interpretation and avoid being caught between "the rock" of sheer judicial preference and "the hard place" of ossification?

Public understanding

One answer is to search for the widespread public understanding of the meaning of these terms at the time they were adopted. People with a thin understanding of this method think this is the same as fixing the meaning of the Constitution in 18th or 19th century terms, but is, in fact, considerably more flexible. An unreasonable search and seizure - in 1789 as well as today - is one in which a reasonable expectation of privacy has been invaded. Of course, disagreement can ensue over what constitutes a reasonable expectation of privacy, but the fact that automobiles, cell phones and computers were unknown in 1789 does not mean that there is automatically no reasonable expectation of privacy in the use of those devices. Ironically, an 18th century understanding of what is a reasonable privacy expectation might be more protective than our current understanding of that term. The virtue of this method is that it requires judges to find a foundation upon which to erect contemporary constitutional interpretation. Its defect is that sometimes it is difficult, maybe impossible, to detect the original public understanding.

Another method is to interpret the Constitution's grand phrases in light of our contemporary understanding of their meaning. For example, we think today that there are some liberties, never mentioned in the Constitution, that are so deeply rooted in our tradition that government curtailment of them must amount to a denial of due process of law. Among them are a variety of sexual reproductive freedoms, such as contraception and abortion. This method risks substitution of judicial sentiment - what judges think the law should be - for an actual expression of a constitutionally expressed liberty.

Inalienable rights

Of course, it is an ancient American tradition to insist that there are inalienable rights - those that may not be infringed even though they are not expressed in the Constitution. But what are those rights? There is no easy answer. The best that judges can do is to apply an honest appraisal of how deeply grounded such claimed rights are in our history. Even here, if one characterizes an inalienable right at a highly general level it becomes a simple matter to import one's preference into the capacious mantle of a general right. For example, does an adulterous father have a right to visit his offspring born into another person's marriage? If the right is characterized as the right to have a relationship with one's children, the answer is surely "yes," but if the claimed right is seen as the right to visit one's child born into another's marriage where the married couple object to such visitation, surely the answer is "no."

There is also a constitutional structure to be preserved. The Constitution grants to the federal government only those powers listed in the document and reserves to the states and the people of the states all other powers. The federal government has very considerable powers, but it has no power to do anything it thinks is a good idea. If in the course of judicial interpretation of the Constitution, the courts interpret the federal government's powers so broadly that there is no limit to them, the Constitution's structure has been totally altered. Any judicial interpretation of federal power that reaches such a result is wrong.

Consider, for example, another Constitution, the U.S.S. Constitution, launched in 1797 and continually a commissioned ship in the United States Navy. "Old Ironsides," as she is familiarly known, still has the same structure though few, if any, of her timbers date from 1797. Electric lighting can be found below decks - unheard of in 1797 - and she is no doubt blessed with radar and GPS devices. But her structure remains the same. She is still a 44-gun frigate, even though her guns are unlikely to be used in anger. Judges should pay heed to the parable of the U.S.S. Constitution in interpreting the scope of federal powers.

Not the sole remedy

Judges must appreciate the risk that their "interpretations" may be only their preferences. This is as true of adherents to the original meaning of the Constitution as it is to the acolytes of the "living Constitution." The Constitution is not the sole remedy for injustice; indeed, it is not even the primary remedy. We elect our representatives to translate our desires into law, consistent with the Constitution and other paramount laws. For example, there is no constitutional impediment to private racial discrimination in public accommodations. It is Congress and state legislatures that have acted to remedy that injustice.

We tend to forget that all that is constitutional may not be a good idea. Lots of free speech is intemperate or hurtful, but the value of free expression outweighs the transitory hurts of free speech.

We need not wrench the Constitution from its moorings to accomplish our desires. Indeed, constant alteration of the Constitution by addition of new rights ungrounded in our experience and boundless extensions of federal power makes the Constitution a malleable, evanescent, and expedient instrument. If we had done the same to the USS Constitution it would probably have been turned into a Civil War ironclad and then scrapped as the Great White Fleet came into existence at the end of the 19th Century.

Calvin Massey is the Daniel Webster Distinguished Professor of Law at the University of New Hampshire School of Law.